THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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[06:31:20] ALISYN CAMEROTA, CNN ANCHOR: Breaking news overnight: 19 terror suspects following multiple raids in Germany. Police detained 16 men in central Germany between the ages of 16 and 45. Among them, a suspected ring leader believed to be an ISIS recruiter and smuggler.

In Berlin, authorities arrested three other men. Police say they were planning to travel to Iraq and Syria to take part in ISIS training camps. Police say all of those arrested were plot ago tacks.

CHRIS CUOMO, CNN ANCHOR: The Israeli government approving the construction of 3,000 new settlement homes in the occupied west bank. More than 5,000 new settlement homes have been approved since President Trump took office. Trump has signaled a more accepting approach to Israeli settlements. A statement from Israeli's defense ministry says the new homes address a growing demand for housing and a, quote, "return to life as usual."

CAMEROTA: Another legal battle shaping up over the Dakota access pipeline. The Standing Rock Sioux Tribe vowing to fight the project after the acting secretary of the army directed the Army Corps to complete the project. In December, the Army Corps under President Obama denied the permit needed to complete the pipeline. Last week, President Trump signed an executive order reopening the project.

CUOMO: President Trump's highly charged refugee and travel ban is running up against lawsuits. Do the legal challenges stand a chance? We have a closer look.

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[06:36:39] CUOMO: So the Trump administration is free to blame the media all it wants, but the fact is the travel ban has problems. People have come out from around the country and around the world frankly to protest what the ban says about American values.

But there's also legal protests. Attorneys general from four states suing the Trump administration over the executive order restricting immigration. Is there anything to the legal side of this?

Joining us with some answers is Laura Coates, CNN legal analyst and former federal prosecutor. Laura, it might be helpful for people to get the two statutes that

will be in place. Some of this would be constitutional arguments but those are a little on the weeds for 7:00 in the morning.

So, let's look at the 1952 Immigration Act, let's put that up for the people at home. And basically, what this does is it gives the president in the interest of the country if he thinks it's in the interest of the country. That was followed up by 1965 Immigration Act where there was a little bit of a prohibition put it where you can't get preference or priority or be discriminated against on the basis of race, sex, nationality, place of birth or place of residence. The last part will probably be operative for those who are going to protest.

What's your take?

LAURA COATES, CNN LEGAL ANALYST: Well, you know, that particular INA statute is really important and critical in any legal argument that challenges the immigration ban. And the reason for that is because, well, when the courts consider whether or not this ban is effectively unlawful under that statute, they had to figure out whether or not the power of the president, the presidential prerogative to deny entry is somehow was curtailed by congressional action to say we're talking about the issuance of visas.

Now, the legal fallacy of all of this, of course, is that one can't get a visa if they're denied entry and vice versa. So, that's going to be one of the big legal challenges here. But you're overriding theme here is that presidential prerogative will problem undermine any argument against using that INA.

CUOMO: What about the idea of in 1965, they changed the reckoning of what the president's discretion was, and that you can't just keep people out because of where they are from. Obama's law in 2011, his executive order, was to keep people out from those countries on the basis of travel to them in select cases, not simply being from there.

Will that matter in court?

COATES: I think it will because, of course, national discrimination is the heart of that particular statute and what we were trying to curtail, to try to prevent the Asiatic bar from the late 19th century. This was LBJ's choice to try to figure out how we could avoid having that sort of quota based system and complete preference of people from certain regions of the world and that will be a good challenge to make in court. It won't be the only one, of course, but probably the most persuasive one is the religious aspect of it.

CUOMO: Which is?

COATES: Well, the actual ban is banning all refugees for the 120-day period and Syrians indefinitely. But, after 120 days, the homeland security office has the discretion to try to allow people who are the minority religion in a particular state in the country to have preferential treatment to access of the country. And that in of its core really offends the establishment clause which says we are dominationally neutral and do not prefer, let alone endorse, a particular religion whether it be the minority religion or otherwise.

[06:40:00] CUOMO: Is there a question as to whether or not that applies to this law? That this isn't about the official recognition of faith, but it is self-selecting to deal with people in extreme circumstances?

COATES: You know, that is the spin that is being cast by the White House saying you're talking about it being a "Muslim ban", quote unquote, because of the rhetoric on the campaign trail.

CUOMO: That's what President Trump when he was running called it. That's what we know from Rudy Giuliani, he was asking for and they found a legal way to do it.

COATES: You know, that's going to be the key, because normally, courts don't want to look legislative history to figure out. But here, the legislative history is the rhetoric of a president and also apparently the way they were trying to legalize and otherwise discriminatory law. So, that will be looked at by the courts.

However, the bigger argument you have to think is, well, you know, is his statements there's a territorial ban and there's no indication on its face besides that 120-day clause and it will benefit both most non-Muslims and certain areas of the world. However in this case, it's pretty clear there's a preference for a particular religion when it comes to the minority religion, and that in and of itself is problematic.

CUOMO: One of the things I think I was able to figure out looking at case law over the last two days is duration is irrelevant. We keep hearing it's temporary, it's temporary, that's why they don't want to call it ban now. But that's all spinning politics and in the eyes of the law what I found, tell me if I'm going to be wrong on this. It doesn't matter if it was one day or forever, if it was on the basis of something that's illegal, it's illegal.

COATES: That is absolutely correct and that's also the foundation of the Boston and Virginia judge's order saying, listen, even if it's a temporary inconvenience, it's still offensive to the Constitution perhaps. And if there's any ambiguity as to its lawfulness, if you offend the rights of any person that has rights and access to the Constitution of the United States of America, it can be temporary, it can be indefinite, it is unlawful.

CUOMO: I'll tell you, if people who want to get into this for themselves, it's amazing how similar the language in politics is right now to what we saw about the Japanese during and after World War II, about the Jews around crystal knock and what was going on in the '30s, about what happened with my ancestors and Italians and the wave of ethnics that came in.

Anyway, Laura Coates, we'll see what happens in the courts. Thanks for setting up the whole picture for us. Appreciate it.

COATES: Thank you. CAMEROTA: Up next, this Bud's for them. Budweiser takes on the

politically charged immigration issue in its Super Bowl commercial. We have a preview and we'll show it to you.

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[06:46:31] CAMEROTA: So, Patriots quarterback Tom Brady may make it look easy. He may look like the luckiest man alive. But yesterday, he revealed that he has had a very hard year.

Andy Scholes has more in this morning's bleacher report. What did he say, Andy?

ANDY SCHOLES, CNN SPORTS CORRESPONDENT: Hey, good morning, guys. You know, if the Patriots win on Sunday, Tom Brady is going to go down as the greatest quarterback to ever play the game. He said this Super Bowl is very special for him. Not just because of all the deflate- gate drama he went to to get to this point but also because of CSN New England, Brady's mom has been dealing with a health issue for the last 18 month.

Now, Brady says she hasn't made it to a game all year. His dad has only been to one. That's not normal for them, so to have them here cheering him on on Sunday is going to be extra special.

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TOM BRADY, PATRIOTS QUARTERBACK: It's been a challenging year for, you know, my family. Just for some personal reasons. And, you know, it's just be nice to have everyone here watching us this weekend. And it's my mom and dad been so supportive my entire life and it's nice to be here to show them, you know, to try to make them proud.

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SCHOLES: And, Brady also said, you know, he's been relishing this entire week, because guys, he's 39 years old and he acknowledged this could be his last go around here at the Super Bowl.

CUOMO: Well, look, there's definitely some sympathy on his side. He's a very complicated case when it comes to how people feel about him but you make one strong point.

Tom Brady, if he wins five, it's tough to say anybody has done more.

SCHOLES: No question, yes.

CUOMO: Andy, continue to enjoy it.

So, does Donald Trump's presidency reflect a period of Democratic recession? What does that mean? One of our guests writes about it, he'll tell you. He's got a pretty scary theory, next.

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[06:52:19] CAMEROTA: Critics of President Trump say they see troubling signs already of, quote, "authoritarian" tendencies. Joining us now is David Frum, senior editor of "The Atlantic", who tackles the topic in this new cover story. It is quite a fascinating read, "How to Build An Autocracy", and Bill Carter, author of "The War For Late Night".

Gentlemen, great to have you here.

David, I want to start with you. Let me read a little excerpt from your big cover story in which you say, "By all early indications, the Trump presidency will corrode public integrity and the rule of law and also do untold damage to American global leadership, the Western alliance and democratic norms around the world. The damage has already begun and it will not be soon or easily undone."

David, we're only on week two. What are the troubling signs that you see?

DAVID FRUM, SENIOR EDITOR, THE FRUM: Well, it's already true. Donald Trump's family members are sitting in on meetings with foreign leaders. And those three gentlemen from India are showing up and alerting people back home that they had better do business with those business partners because they had access to the president.

The flow of money into the Trump Organization is accelerating. The Trump Organization has announced plans to triple the number of hotels in the United States. It wasn't a popular and successful business before.

And all of this was happening with no way for anyone to keep track of what the president is receiving from interests at home or abroad except through the very inadequate White House disclosure forms because the president uniquely for the first time since Jimmy Carter will not publish his tax returns. We will not know if he gets ten times richer over the course of his presidency.

CUOMO: So, the pushback, Bill, is we told you this during at the election. We told you a lot more about it after the election. And there has been no uprising or real shift in his base. So, if people don't care, is it a dead letter?

BILL CARTER, CNN MEDIA ANALYST: Well, it seems to be there's not much you can do officially about it because the checks and balances that we normally have are not in place. The Congress is not going to do anything about it, so then it becomes incumbent on the press and the media to do something about it and this huge push back against that.

I don't think unless, you know, there are leaks that really get into this, the issues that David is talking about, we're going to know a lot of this information ever. I think certainly the Congress isn't going to have a hearing to demand it as long as the Republicans are controlling Congress.

CAMEROTA: David, why do you think people are comfortable with signs that you see as quite troubling?

FRUM: I don't think people are comfortable at all. Obviously not but there's a great deal of public apathy and that's one of the resources that the Trump administration is counting on. Americans are demobilized. This is not a country of joiners anymore. And I talk about that a lot in the piece.

[06:55:01] That we have an image of political activity going to protest rather than going to the PTA meeting. So, when the society demobilizes, it becomes possible for leaders to bend the rules.

I understand, I'm not predicting here some kind of dictatorship. It's not going to happen the way it happened 80 years ago. Modern authoritarianism of a kind that you see on the rise in East and Central Europe, in places like Hungary, in places like Slovakia, that may come to France if the National Front, the presidential election there this year. It proceeds by corruption and deceit rather by violence and dicta.

CUOMO: Are your hopes raised by some of the palace intrigue surrounding push back on Bannon for how terribly the travel ban has gone early on, that this say big strong move of him. It has his fingerprints all over it and maybe his influence and maybe impetus for what you're worried about may wind up taking a hit after something like this?

FRUM: The problem is the president, and Donald Trump has throughout his career attracted bad characters. They will not -- and if one character falls out favor, he'll be replaced by another bad character. The problem comes from the top.

CUOMO: But this guy is unique. I mean, you know, I'm getting to be a little bit an old lion on this business, Bill, and I've never seen a guy with Bannon's background brought into the seat of power. The guy said the other day, he has to bait the media, but I'm happy he said it. I'm a Leninist.

CARTER: Right.

CUOMO: Forget about the fact that, you know, a Russian that he chose and that some political play, but the author of red terror, a guy who killed political dissidents.

CARTER: In terms of blowing things up, that's what he meant. He wants to blow the establishment.

CUOMO: When you heroized and lionized someone, you own what they are, OK?

CARTER: That's really bizarre to do that.

But that I think -- what makes this guy special is that he's willing to throw out ideology for his big purpose. His big purpose is to just blow things up and start over and he keeps talking about this being a movement. It's like -- it's not really politics now. It's something else.

CUOMO: How genuine it is? This is the guy who's in the Navy. That's establishment. CARTER: Right.

CUOMO: He then worked at Goldman Sachs. He worked in Hollywood. He worked in everything. He worked with big political moves with Breitbart. You know, these are all big things. He was never a real insurgent.

CAMEROTA: But according to his friends, he always had a fixation with war and strategy of war. He liked reading books about war and that he sees himself as a nationalist. I mean, let me just read a little portion so that we know a little bit more about him. This is from a speech he gave in 2014. It was obtained by "BuzzFeed".

"I think strong countries and strong nationalist movements in countries make strong neighbors and that is really the building blocks that built Western Europe and the United States. I think it's what can see us forward."

He doesn't like globalization.

CARTER: Right. It's an America first thing with him and it fits with Trump and David's unique with Trump in a way because he's not a politician. He doesn't have a background of collegial work with legislators. He was a CEO and then he was a guy on television bossing people around. So, he's totally the right figure to work here.

CAMEROTA: All right. Very quickly, let's talk about beer and the Super Bowl. I'm going to make the connection, David Frum.

Budweiser is putting this out ad at the Super Bowl, and it's hard not to see the political implications. Watch this.

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UNIDENTIFIED MALE: You don't look like you're from around here.

UNIDENTIFIED MALE: Why leave Germany?

UNIDENTIFIED MALE: I want to brew beer.

UNIDENTIFIED MALE: Welcome to America.

UNIDENTIFIED MALE: You're not wanted here. Go back home.

(END VIDEO CLIP)

CUOMO: They did pick a white guy but, you know, the message seems to be a little obvious, especially for a beer commercial, especially something as American as Budweiser.

What is your take on that, Frum, that Budweiser seems to be saying, this Bud is for them, for the new Americans?

FRUM: Well, I think it's going to be very important as we see what unfolds. That people react to it in ways that are destructive and intelligent. One of the things that Donald Trump is going to try to do and I warn about in this article is certain protests are not a problem for him. They're a resource.

If he can drive his opponents to extremes as unacceptable as his own, for example saying the alternative to random enforcement or discrimination in immigration is to have open borders. Not to enforce the immigration laws, it's open immigration that creates these authoritarian parties in the United States and Europe. So, be careful.

CAMEROTA: All right, David Frum. Everybody should your article, "How to Build an Autocracy."

FRUMP: Thank you.

CAMEROTA: It's fantastic.

Bill, everybody should read book. Also fantastic.

CARTER: Thanks.

CAMEROTA: Thank you, gentlemen.

CUOMO: Every day.

CAMEROTA: Every day.

CUOMO: Thank you, international viewers, for watching us here on NEW DAY. "CNN NEWSROOM" is new for you.

For our U.S. viewers, we have news for you. Let's get right to it.

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UNIDENTIFIED MALE: Our job is to protect the homeland.

REP. NANCY PELOSI (D-CA), MINORITY LEADER: Our president is reckless. And the administration is incompetent.